Insight into Canadian Employment Law

Suppose an employee comes to you and accuses another of sexually harassing women in the workplace. Or a customer comes to you and alleges that one of your sales staff directed a racial epithet to her. What do you do?

Employers have an obligation to provide a workplace free of harassment and discrimination. As soon as you are aware of an allegation of harassment or discrimination, your duty to investigate is triggered. Once that obligation is triggered, you must act quickly and investigate fully before you can terminate the subject employee for cause. On the one hand, failure to do so may lead to a human rights complaint or a civil suit from the victim of harassment. On the other hand, deciding to terminate an employee without conducting any or a full investigation can also lead to human rights complaints and civil suits, including increased awards of wrongful dismissal damages or even punitive damages.

The following are some tips in avoiding liability for failing to conduct a proper investigation:

Follow your own HR policies: Employers are well advised to have written HR policies. In order to show transparency, this is particularly true for policies establishing a complaints procedure and investigation process. If you already have written policies in place, follow them! Courts have held that employers are bound by employment policies relating to the conduct of investigations and disciplinary matters. An employee terminated for cause can have it overturned successfully for failure to scrupulously follow the employer’s own policies in the conduct of an investigation.

Internal or External Investigator: It is important that you have an experienced person conducting the investigation to ensure that it is fair and complete. If you use your own HR staff, you are exposed to allegations of unfairness or bias. Ensure that your internal investigator has experience. A court will chastise an inexperienced HR manager who conducts an investigation without an “open mind” and without giving that employee a chance to meaningfully respond to the allegations. A court will also regard an investigation as insufficient if it has been conducted by someone who is not trained for that purpose.

Using an experienced external investigator or lawyer to conduct the investigation, especially if the allegations could lead to a termination for cause, will more likely protect you against a finding of a flawed investigation.

Interviews: Start by informing the parties of the investigation process and refer to the applicable HR policies, stressing the necessity of confidentiality. Stress that the investigation will be conducted fairly. Advise who will conduct the investigation and the timeframe involved.

The complaining employee and the subject employee should both be interviewed to obtain the facts, including any documentary evidence and a list of witnesses.

The subject employee must be provided with the details of the allegations, and be provided with an opportunity to meaningfully respond to the allegations.

Employee’s request for a lawyer: An investigation is not a legal proceeding. The subject employee has no right to have a lawyer present for the interview, so you can deny the request. If you allow a lawyer to be present, set parameters:

-Have the lawyer agree not interrupt the investigator’s questioning or answer for the employee, except to the extent that the investigator oversteps his or her mandate. The employee has the right to have a lawyer assist in understanding the questions and issues involved.

-Insist that the lawyer respect the investigative process.

-Agree that should the lawyer overstep these parameters, he or she will not be permitted to participate in the investigation.

Witnesses: In order to maintain confidentiality, witnesses should only be provided with as much information as is required to obtain their evidence. They should also be reminded of the obligation to maintain confidentiality. In some circumstances, you may have to assure a witness employee of protection against reprisals from the subject employee. You are also well advised to have protection from reprisal action incorporated into your complaints procedure and investigation process policies.

Underlying issues a mitigating factor: If you are aware of any underlying issues that an employee may have, such as a prior substance abuse or mental health issue that might be characterized as an illness, consider whether they might be a mitigating factor for the employee’s misconduct. In such circumstances, courts have held that it is more reasonable to apply discipline short of termination for cause.

Report of investigation: You have an obligation to report the results of the investigation to the subject employee and the complainant.

Whether the report is written or verbal, review the findings and conclusion carefully. Employers have been held liable for accepting a flawed report as the basis of a termination for cause, where the report did not have context, and both the factual assumptions and conclusions were flawed.

The witnesses are not entitled to a report.

The subject employee should also be provided with an opportunity to obtain legal advice regarding your conclusions.

A properly conducted investigation will provide you with the foundation for terminating an employee with cause or imposing discipline. Failure to conduct a prompt and full investigation opens you up to the potential for unnecessary liability, from either the complainant or the subject employee.